Pring v Thomson and FAI General Insurance Company Ltd

[1996] QCA 2

(Plaintiff) Respondent

AND:

ANDREW FREDERICK THOMSON

(Defendant) Second Appellant

AND:

FAI GENERAL INSURANCE COMPANY

LIMITED

(Defendant by Election) First Appellant

___________________________________________________________________________

McPherson J.A.
Pincus J.A.

Shepherdson J.

___________________________________________________________________________

Judgment delivered 02/02/1996

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

___________________________________________________________________________

APPEAL DISMISSED WITH COSTS
___________________________________________________________________________

CATCHWORDS: PERSONAL INJURY DAMAGES - quantum of damages - head injury - past economic loss - future economic loss - assessment of economic loss - beyond any figure which might reasonably be reached on the evidence - matter of impression - Griffith v. Kerkemeyer damages - no ground for interfering with essentially factual conclusion.

Malec v. J C Hutton Pty Ltd (1990) 169 C.L.R. 638

Counsel:	Mr A S Mellick for the respondent. Mr R Oliver for the first appellant.
Solicitors:	Rees R & Sydney Jones, Rockhampton for the respondent. Baker Johnson for the first appellant.
Hearing date:	02/06/1995

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 237 of 1994.

Brisbane

Before	McPherson J.A. Pincus J.A. Shepherdson J.
IN THE COURT OF APPEAL	[1996] QCA 002
SUPREME COURT OF QUEENSLAND

Appeal No. 237 of 1994

Brisbane

Before	McPherson J.A. Pincus J.A. Shepherdson J.
[FAI v. Pring]
BETWEEN

JOANNE EVOL PRING

(Plaintiff) Respondent

AND

ANDREW FREDERICK THOMSON

(Defendant) Second Appellant

AND

FAI GENERAL INSURANCE COMPANY LIMITED

(Defendant by Election) First Appellant

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered the 2nd day of February 1996

I agree that the appeal should be dismissed for the reasons given by Pincus J.A.,

which I have had the advantage of reading.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 237 of 1994.

Brisbane

[FAI v. Pring]

BETWEEN:

JOANNE EVOL PRING

[FAI v. Pring]

BETWEEN:

JOANNE EVOL PRING

(Plaintiff) Respondent

AND:

ANDREW FREDERICK THOMSON

(Defendant) Second Appellant

AND:

FAI GENERAL INSURANCE COMPANY

LIMITED

(Defendant by Election) First Appellant

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 02/02/1996

This is an appeal against the quantum of damages awarded in a personal injury case, the

appellants being the defendant and defendant by election. The plaintiff, a single woman born in March

1971, was injured shortly after her 21st birthday while travelling as a passenger in a vehicle. The parties

agreed that she should recover 65% of the damages assessed.

The trial judge assessed damages at a little over $425,000 and that figure included a component

of $276,000 for loss of past and future earning capacity and $60,000 for future Griffiths v. Kerkemeyer

loss; those elements and no others are challenged by the appellants.

The respondent plaintiff suffered a head injury, the signs of which became evident during her

initial stay in hospital and subsequently on visits to outpatients. A neurologist’s report given a little over

a year after the accident says that as a result of the head injury the plaintiff had suffered significant impairment of memory and also some impairment of cognitive function. The doctor also referred to

impairment of concentration, some personality change, impairment of balance and co-ordination and

a mild problem with speech and expression. He mentioned that the plaintiff suffered from headaches,

but thought they would eventually settle, and also that she complained of brief giddiness which the

doctor thought would diminish. When he saw the plaintiff again, about a year later, he noticed a little

improvement in her balance and co-ordination, but otherwise no significant change; but on the second

occasion the plaintiff complained to the doctor that her headaches were worse.

A psychologist who tested the plaintiff found in 1993, about a year after the accident, that she

had a "low average" IQ and said:

"It is likely from the history and retained ability that Ms Pring previously functioned

intellectually in the low average to average range of intelligence".

A subsequent IQ test gave a slightly better result. When asked about intelligence level at the trial the

psychologist expressed the view that the plaintiff’s "intelligence test level" had not necessarily gone down

as a result of the accident, but said, as I understand the evidence, that the plaintiff’s other mental

qualities had worsened. The psychologist’s opinion of the plaintiff’s pre-accident intelligence appears

to have been influenced by knowledge of the plaintiff’s school results, which were not good, and it was

said in effect that a person with the plaintiff’s post-accident IQ should have been able to achieve better

results at school than the plaintiff achieved.

There was placed before the trial judge a summary of the plaintiff’s work history and an

argument was put to us that this showed a disinclination on the part of the plaintiff to advance herself by

working, prior to the accident. It appears to be correct that, in the period of over five years prior to the accident the plaintiff worked wholly or mainly at casual, relatively short-term jobs. It was argued

that the plaintiff’s pre-accident income did not suggest that she had or was likely to have any substantial

earning capacity. In the financial year immediately preceding the accident her nett earnings averaged

$87 per week, and in the year prior to that $123 per week. In the part year prior to the accident the

plaintiff earned only about $1,800. The argument for the defendants contrasts these figures with the sum

of $26,000 allowed for past economic loss and $250,000 allowed for future economic loss.

It is evident that at present and during the period since the plaintiff was injured it has been

difficult for some people who have recently left school and who have no special qualifications to obtain

satisfactory permanent employment. Sometimes but not always this difficulty diminishes as the person

in question ages; but assessing the long-term future of a young person, uninjured, is necessarily rather

speculative in these days of quickly-changing employment patterns. But for findings which I propose

to set out in some detail, the judge’s assessment of economic loss must have been characterised as

rather optimistic; there was by the time of trial a working history producing earnings very much lower

than those which were assumed in his Honour’s calculations. Future economic loss was assessed on

the basis of a likely income of $300 per week, about three times that which was being received before

the accident. The judge was plainly impressed with the plaintiff’s potential and regarded her, as I

understand the reasons, as now having the prospect of only obtaining quite short-term employment -

i.e. employment until an employer discovered the extent of her impairment. His Honour mentioned, and

appears to have accepted, evidence that prior to the plaintiff’s injury she was very energetic and

punctual and had an outgoing personality. She had been admitted, his Honour found, to a TAFE course

in the area of "hospitality", on the basis of her "bright, bubbly personality". The judge also found that the person who employed the plaintiff immediately prior to the accident, a motel proprietor, was so

impressed by her that he tried to get her back after the accident and may have considered her for

training as a receptionist.

His Honour took the view that it seemed "as probable as anything may be in life" that the plaintiff

would have stayed at the motel for a while and have attained the status of receptionist after graduating

from the TAFE college. His Honour went on:

"Beyond that it is very difficult to gauge how far she would have gone in the hospitality industry. Certainly, the men who met her prior to her accident and who were engaged in that industry formed very favourable impressions upon her personality and her appearance".

His Honour took the view that it was more probable than not that after the TAFE course concluded the

plaintiff would have obtained "some permanent employment with [the motel proprietor] or some

equivalent permanent employment". His Honour’s view was that if things had gone well for the plaintiff

she would have been able to earn amounts well in excess of $400 to $500 nett per week. He

mentioned the possibility that she might have gone into business herself, and said that "it is not hard to

picture her as being a very successful licensee of a popular hotel".

No doubt it sometimes occurs that persons such as those who spoke favourably of the plaintiff

at the trial may present an exaggerated picture, perhaps out of sympathy for the plaintiff or simple mis-

judgment of her. But they were in a position to judge her abilities and it is difficult to see why his

Honour should not have been entitled to accept their assessment, which corresponded with his own

impression. It was contended that his Honour must have failed to take into account sufficiently matters

such as those referred to above - the plaintiff’s employment and scholastic record - as well as other evidence tending to suggest that the assessment was high: that the plaintiff had been enrolled in the

TAFE course only for a month or two, that many of the students enrolled for the course do not

complete it, that the qualification obtained from the course is not of great value in obtaining employment,

and other matters which were referred to in argument. It is true that the primary judge did not

specifically mention all of the points which might have been thought to justify a less generous award than

was in fact made. But there is no reason to assume that his Honour was unaware of them; the trial was

fairly brief and the judgment unreserved.

It was also argued that, on the basis of the principle laid down or re-affirmed in Malec v. J C

Hutton Pty Ltd (1990) 169 C.L.R. 638, the judge should have assessed damages for a lower sum, both

in respect of past and future economic loss, than he did, to allow for the possibility that the future his

Honour thought to be probable would not eventuate. This complaint seems to me not to be made out;

the judge’s reasons clearly indicate that his Honour has attempted to take into account the chance of

adverse events as well as favourable ones.

In order to succeed in this appeal, the defendants do not have to show any specific error of fact

or principle; the argument was in essence that the amounts awarded for past and future economic loss

were simply beyond any figure which might reasonably be reached on the evidence, taken as a whole,

and particularly the evidence of the plaintiff’s pre-trial working performance. The response to that

submission must be very much a matter of impression rather than calculation; it is necessary to keep

in mind this Court’s limited power to interfere with findings which depend, as do the critical findings of

his Honour here, upon impressions gained from seeing and hearing the witnesses.

Although looked at objectively the primary judge’s awards in respect of both past and future

economic loss seem to be generous, I have concluded that this Court would not be justified in interfering

with them.

The remaining question relates to the Griffith v. Kerkemeyer damages of $60,000 in respect of

future services. It is not very clear to me what is the basis of the attack upon this element of the award. The

question whether it is a proper one depends upon the extent to which the plaintiff’s ability to care for herself

has been diminished and is likely to remain so. His Honour found that the plaintiff required assistance

because of the needs that her disability have created, and gave examples of the ways in which her ability to

care for herself had been affected. He appeared to accept the evidence (favourable to the plaintiff’s case)

of a Ms Woods, an occupational therapist, who his Honour said "of all the experts is the one who has spent

the longest period of time making a detailed assessment of Miss Pring’s capacity". The assessment of the

extent of the plaintiff’s incapacity, in the areas discussed in the reasons, appears to me plainly to be a topic

in respect of which his Honour’s views must prevail if there is evidence to give them reasonable support.

That there is such evidence can hardly be doubted; it is true, again, that some aspects of the

evidence which might have been argued at the trial to have a tendency to diminish Griffiths v. Kerkemeyer

damages were not specifically mentioned by his Honour, but this does not justify the conclusion that they

were overlooked.

In the end my conclusion is that, although the amount awarded in respect of Griffith v. Kerkemeyer

damages appears on the face of it to be generous there is no ground for interfering with this essentially factual

conclusion.

I would dismiss the appeal with costs.

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 02/02/1996

I have read the reasons for judgment of Pincus J.A. I agree with the orders he proposes

and the reasons which he gives.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No.237 of 1994
Before	McPherson J.A. Pincus J.A. Shepherdson J.
[FAI v. Pring]
BETWEEN:

JOANNE EVOL PRING

(Plaintiff) Respondent

AND:

ANDREW FREDERICK THOMSON

(Defendant) Second Appellant

AND:

FAI GENERAL INSURANCE COMPANY

LIMITED

(Defendant by Election) First Appellant

REASONS FOR JUDGMENT - SHEPHERDSON J.

Judgment delivered 02/02/1996

I have read the reasons for judgment of Pincus J.A. I agree with the orders he proposes

and the reasons which he gives.